US Capitol building in Washington DC 390.
(photo credit: Kevin Lamarque / Reuters)
US President Barack Obama’s choice to go to Congress for approval of his
decision to take military action against Syria is just another chapter in a
never-ending battle between American presidents and Congress. The fray is over
the question: can a president use military force solely on his own authority?
Though the controversy could be traced back to the founding of the US, the
modern fight dates back to the 1973 War Powers Resolution passed by Congress in
the shadow of the Vietnam War to give a concrete way to hold presidents back
from getting too deep into an unpopular war without transparency and checks from
The resolution allows a president to take unilateral military
action without Congress formally declaring war. But more importantly, it
requires the president to report on the action within 48 hours and to withdraw
forces between 60-90 days after the action has started, if by 60 days the
president has not obtained Congressional approval.
president has stated their belief that the resolution is an unconstitutional
restriction on their inherent powers as Commander- in-Chief.
Constitution does not specifically list a presidential power to order military
action short of total war without Congressional authorization.
every president has said that because the president is Commander-in-Chief
entrusted with defending and securing the country, by definition, the executive
must possess the power to order such actions on his own in the face of threats
that move faster than Congress can operate.
Congress has claimed the
resolution is constitutional on the basis of its authority to declare war, to
legislate all issues necessary and proper to the running of the country, its
power over funding the military and its role in maintaining the armed forces
(the Constitution does not mention an air force, but everyone agrees that its
intent would have included an air force in the modern context).
presidents Ronald Reagan and Bill Clinton fought over application of the
resolution and both of them flouted its restraints where they believed
Reagan clandestinely aided the Contras militarily in Nicaragua
in 1985-1986, while Clinton ignored Congress in bombing Kosovo in
Both had fights over the issue, and members of Congress have sued
presidents, most notably in the 2000 Campbell case, where a US court said that
the issue is beyond the authority of the courts to decide, since courts are not
equipped to define “war” versus “hostilities,” who started a war and other
So the courts will not decide the issue.
himself fought in 2011 over his military action in Libya when it continued for
more than 60 days without consulting Congress.
Congress “rebuked” Obama
268-145 for the lack of consultation, but Obama said that at that point he had
handed running of the armed conflict over to NATO, so that the 60 days no longer
Presidents have sought Congressional authorization for military
action as George H.W. Bush sought for the 1991 Iraq War and George
W. Bush sought for the 2003 Iraq War, but both undertook other actions
for which they did not seek authorization or were accused of being misleading in
In general, like many conflicts between different
branches of government, the politics of the moment cannot be separated from the
While some have said that Obama may have a stronger
affinity to constitutional limitations on presidential powers as a former law
professor, the hard facts are that where military action is popular and
considered critical to self-defense, presidents feel less pressure to consult and
Congressional anger at being ignored is not likely to register with the
Where action is unpopular, as in Syria, and the basis for action
is more amorphous than self-defense, such as to send a message about chemical
weapons use or for humanitarian reasons, presidents, whether Obama or others,
are more likely to feel the political and legal pressures to consult Congress,
even as they say that the consultation is voluntary and unnecessary.